ISPs can’t block or throttle traffic if they sell broadband to state agencies.

New Jersey is enforcing net neutrality with a new executive order that requires ISPs to follow neutrality rules if they sell Internet service to state agencies.

The executive order announced today by Governor Phil Murphy is similar to ones previously signed by the governors of New York and Montana. States are taking action because the Federal Communications Commission repealed federal net neutrality rules.

Further Reading

The executive order says that New Jersey state agencies may only buy Internet service from ISPs that adhere to net neutrality principles. But the net neutrality protections will cover ordinary residents as well as government officials. That's because the order says that "adherence to 'net neutrality' principles means that an ISP shall not [violate the rules] with respect to any consumers in New Jersey (including but not limited to State entities)."

ISPs doing business with the state would not be allowed to block or throttle lawful Internet traffic for any consumer in New Jersey. Paid prioritization will also be off-limits.

While ISPs would be allowed to block or throttle content in cases of "reasonable network management," those situations must be disclosed to customers. More generally, each ISP subject to the order would have to provide consumers with "accurate information regarding the network and transport management practices (including cellular data and wireless broadband transport), and performance and commercial terms of its broadband Internet access services."

The order will apply to ISPs that accept state contracts on or after July 1 of this year.

"We may not agree with everything we see online, but that does not give us a justifiable reason to block the free, uninterrupted, and indiscriminate flow of information," Murphy in his announcement. "And, it certainly doesn't give certain companies or individuals a right to pay their way to the front of the line. While New Jersey cannot unilaterally regulate net neutrality back into law or cement it as a state regulation, we can exercise our power as a consumer to make our preferences known."

The executive order was modeled on legislation submitted by State Assemblyman Nicholas Chiaravalloti. Chiaravalloti praised Murphy for "show[ing] true leadership" and said that New Jersey must "stand behind and support the public's interest rather than the interests of the large corporate Internet service providers." (Chiaravalloti and Murphy are both Democrats.)

New Jersey also joins lawsuit against FCC

Separately, New Jersey Attorney General Gurbir Grewal announced today that his state will join 21 other states and the District of Columbia in a lawsuit against the FCC. The suit attempts to reverse the net neutrality repeal.

Further Reading

"We are committed to taking whatever legal action we can to preserve the Internet rights of New Jersey consumers and to challenge the federal government's misguided attack on a free and open Internet," Grewal said. "The Federal Communications Commission acted arbitrarily and against the evidence before it when doing its about-face on net neutrality."

Grewal, also a Democrat, was sworn in as attorney general on January 16, which may explain why he wasn't initially part of the states' lawsuit. The suit was filed on January 16 and was planned for a month prior to that.

The FCC's repeal also preempts states from enforcing their own net neutrality rules. That's why the New Jersey, New York, and Montana executive orders are narrowly targeted at ISPs that sell Internet service to state agencies. By imposing the requirements on the state agencies rather than directly on ISPs, the governors hope to withstand legal scrutiny even if the FCC's preemption of state laws is upheld in court.

The California State Senate took a more direct approach by imposing net neutrality rules directly on ISPs. But the bill is still pending in the State Assembly, and the Electronic Frontier Foundation is concerned the bill might not survive lawsuits because of the FCC's preemption of state laws.